Anim v. USA
Filing
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OPINION AND ORDER: re: 7 MOTION for post conviction relief filed by Emmanuel Anim. For the reasons discussed above, Petitioners motion is DENIED. Because the Petition makes no substantial showing of a denial of a constitutional right, a certificat e of appealability will not issue. 28 U.S.C. § 2253. This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).SO ORDERED:(Signed by Judge Kimba M. Wood on 8/12/2013) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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EMMANUEL ANIM,
:
:
Movant,
:
:
-against:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
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KIMBA M. WOOD, United States District Judge:
12 Civ. 3426 (KMW)
Opinion & Order
Emmanuel Anim (“Petitioner”) moves, pursuant to 28 U.S.C. § 2255, for this Court to
vacate, set aside, or correct his sentence on the grounds that both his trial counsel and appellate
counsel rendered ineffective assistance. [Dkt. No. 7 (“Petition”)]. On October 24, 2012, the
Court granted Petitioner’s request to proceed in forma pauperis and appointed counsel pursuant to
18 U.S.C. § 3006A(g). [Dkt. No. 10]. The Government filed its opposition on March 8, 2013,
arguing primarily that the § 2255 Petition was procedurally barred by virtue of the waiver
contained in Petitioner’s plea agreement. [Dkt. No. 14]. Petitioner’s appointed counsel filed a
reply on May 15, 2013, arguing that Petitioner should be permitted to withdraw his guilty plea, or,
in the alternative, be permitted to file a new appeal. [Dkt. No. 18].
For the following reasons, Petitioner’s motion pursuant to § 2255 is DENIED.
I.
FACTUAL BACKGROUND
A. Petitioner’s Arrest and Indictment
On July 8, 2010, agents of the United States Diplomatic Secret Service obtained an arrest
warrant for Ms. Faustina Djeagu, whom they suspected of obtaining a U.S. passport under a false
name. The agents also obtained a warrant to search Ms. Djeagu’s Bronx residence, which she
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shared with Petitioner, her husband. (Decl. of U.S. Diplomatic Secret Service Officer Charles
Harrison (“Harrison Decl.”) ¶¶ 4, 6 [Dkt. No. 15]).
While executing the search warrant, the Secret Service agents asked Petitioner some basic
questions. In response, Petitioner lied by telling the agents that his “name was ‘Charlse Anim’
and that ‘Emmanuel Anim’ had returned to Ghana many years ago.” (Harrison Decl. ¶ 6).
Petitioner subsequently admitted that his real name was Emmanuel Anim. (Id.). He also
provided written consent for the agents to search the apartment for documents in his name. (See
id. Ex. A). The agents recovered documents identifying Petitioner as “Charlse Anim,”
“Emmanuel Anim,” and “Enoch Roberts.”
The agents did not arrest Petitioner at that time. Instead, the Government arranged for
Petitioner to be appointed counsel and to engage in a proffer in order to consider whether
Petitioner would cooperate in investigating his cousin, who Petitioner had implicated in
immigration fraud. Petitioner attended two proffer sessions—on August 13 and October 7,
2010—which were conducted under an agreement with the U.S. Attorney’s Office for the
Southern District of New York. The proffer agreement, which Petitioner signed, did not provide
full immunity from prosecution. (Harrison Decl. ¶ 11).
The Government ultimately declined to offer Petitioner a cooperation agreement and
instead issued a one-count Information, No. 11 Cr. 42 (KMW), charging Petitioner with
knowingly procuring naturalization for himself based on false information, in violation of 18
U.S.C. § 1425(a). (Decl. of AUSA Serrin Turner (“Turner Decl.”) Ex. A [Dkt. No. 16]).
B. Petitioner’s Plea Agreement
Before the Government filed the Information with the Court, Petitioner entered into a Plea
Agreement with the Office of the United States Attorney for the Southern District of New York.
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(Turner Decl. Ex. B (“Plea Agreement”)). In the Agreement, Petitioner agreed to plead guilty to
violating 18 U.S.C. § 1425(a). In exchange, the Government agreed not to further criminally
prosecute Petitioner and to dismiss any outstanding charges. (Plea Agreement 1). The Parties
also stipulated to the U.S. Sentencing Guidelines offense level, Petitioner’s criminal history
category, and a resulting Guidelines range of six to twelve months’ imprisonment. (Id. at 2).
The Parties agreed not to “[s]eek any departure or adjustment pursuant to the Guidelines,”
although each side was permitted to seek a sentence outside the stipulated Guidelines range based
upon the factors listed in 18 U.S.C. § 3553(a). (Id.). The Agreement also made clear that,
although the Parties stipulated to a Guidelines range, the Guidelines “are not binding on the
Court,” and the Court was authorized to impose any sentence “up to and including the statutory
maximum.” (Id. at 3).
The Agreement repeatedly noted the immigration consequences of Petitioner’s plea, and
explained that “denaturalization is a mandatory consequence of conviction . . . , and thus upon
conviction . . . the Court is required to revoke, set aside, and declare void the final order admitting
the defendant to citizenship, and to declare the defendant’s certificate of naturalization to be
canceled.” (Id. at 1). Moreover, in the Agreement, Petitioner acknowledged “that his guilty plea
and conviction make it very likely that his deportation from the United States is presumptively
mandatory and that, at a minimum, he is at risk of being deported or suffering other adverse
immigration consequences.” (Id. at 4). Petitioner also stated that he had discussed these
possible consequences with his attorney. (Id.).
The Agreement included a waiver of Petitioner’s appellate rights. In the Agreement, the
Parties agreed:
that the defendant will not file a direct appeal; nor bring a collateral challenge,
including but not limited to an application under [28 U.S.C. § 2255 and/or § 2241];
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nor seek a sentence modification pursuant to [18 U.S.C. § 3582(c)], or any sentence
within or below the Stipulated Guidelines Range of 6 to 12 months’ imprisonment.
(Id. at 3). Petitioner further agreed that he “will not challenge his conviction or sentence on direct
appeal, or through litigation under [28 U.S.C. § 2255 and/or § 2241], on the basis of any actual or
perceived adverse immigration consequences (including denaturalization and deportation)
resulting from [Petitioner’s] guilty plea and conviction.” (Id. at 4).
Petitioner and his attorney, Michael Hurwitz, Esq., executed the Plea Agreement on
December 30, 2010. (Id. at 5).
C. Petitioner’s Guilty Plea
On January 13, 2011, Petitioner pled guilty before Magistrate Judge Debra C. Freeman
pursuant to the Plea Agreement. Petitioner admitted to procuring U.S. naturalization for himself
by knowingly providing false information. At the plea hearing, Judge Freeman confirmed the
factual basis for the plea by asking Petitioner to explain his offense. Petitioner admitted that, in
the early 1990s, he had unsuccessfully applied for asylum using his real name, Emmanuel Anim,
and the real names of his wife and children. (Turner Decl. Ex. C, at 31 (“Plea Transcript”)).
Years later, Petitioner applied for naturalization. In order to not “[t]rigger [a] match” alerting
authorities to his previous unsuccessful application, Petitioner used false names and birth dates for
himself, his wife, and his children. (Id.). Petitioner admitted to deliberately using false names in
order to try to improve his chances of obtaining naturalization. (Id. at 32-33). Petitioner’s
application was approved, and he became a naturalized citizen on July 25, 2008. (Id. at 29).
Judge Freeman found that Petitioner was competent to enter a guilty plea. (Id. at 15-18).
She discussed the nature of the charges, the maximum applicable penalties, and the constitutional
rights that Petitioner gave up by pleading guilty. (Id. at 18-24). Judge Freeman also explained
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that mandatory deportation could be a consequence of his guilty plea; Petitioner states that he
understood this. (Id. at 21-22).
Judge Freeman then asked Petitioner whether he had discussed the Plea Agreement with
his attorney prior to signing it, and whether Petitioner’s attorney had explained all of its terms and
conditions to him; he answered in the affirmative to both questions. (Id. at 24-25). Petitioner
stated that he understood that, under the terms of the Agreement, he agreed not to seek to withdraw
his guilty plea based on any actual or perceived immigration consequences, including loss of
citizenship or deportation. (Id. at 26). He also stated that he understood that he would not be
permitted to challenge his conviction or sentence “either on direct appeal to the court of appeals or
by any application to this court based on any immigration consequences.” (Id. at 26-27).
Finally, he stated that his decision to plead guilty was voluntary and of his own free will. (Id. at
27).
D. Petitioner’s Sentencing
On April 18, 2011, Petitioner and Ms. Djeagu appeared before this Court for sentencing.
(Turner Decl. Ex. D (“Sentencing Transcript”)). Petitioner was again represented by Mr.
Hurwitz; Ms. Djeagu was represented by an attorney from the Federal Defenders. (Id. at 2). At
sentencing, Petitioner’s counsel confirmed that he and Petitioner had adequate opportunity to
review the presentence report (“PSR”). (Id. at 3). Counsel then discussed his objections to the
PSR with the Court. (Id. at 4-6). In advocating for a below-Guidelines sentence, counsel
discussed Petitioner’s offense conduct, background, education, employment history, and the
difficulty that Petitioner’s family would likely face following Petitioner’s mandatory deportation.
(Id. at 8-11). Counsel then answered questions from the Court. (Id. at 11-15).
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The Court, after weighing the applicable 18 U.S.C. § 3553 factors, imposed a
below-Guidelines sentence of three months imprisonment. (Id. at 21). At the conclusion of the
sentencing, the Court asked Petitioner whether there was any part of the proceeding that he did not
understand, to which Petitioner responded, “I have understood everything.” (Id. at 25).
E. Petitioner’s Appeal
On April 25, 2011, Petitioner filed a notice of appeal. His counsel submitted an appellate
brief pursuant to Anders v. California, 386 U.S. 738 (1967), explaining that, because Petitioner
had validly waived his right to appeal in the Plea Agreement, there were “no non-frivolous issues
for [appeal].” (See Turner Decl. Ex. F). Upon a motion from the Government, the Second
Circuit summarily dismissed Petitioner’s appeal on September 26, 2011. (Id. ¶ 8).
F. The Instant Petition
Petitioner served his three-month term of imprisonment and was released from custody on
or about December 16, 2012. (Turner Decl. ¶ 9). On April 16, 2012, Petitioner filed the instant
Petition asserting claims of ineffective assistance of trial counsel and appellate counsel.
II.
LEGAL STANDARDS
A. Section 2255
A petition to vacate, set aside, or correct a sentence under § 2255 must allege that: “[1] the
sentence was imposed in violation of the Constitution or laws of the United States; or [2] that the
court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the
maximum authorized by law, or [4] is otherwise subject to collateral attack.” 28 U.S.C. §
2255(a); see also Cuoco v. United States, 208 F.3d 27, 29 (2d Cir. 2000) (stating that relief under §
2255 is available only “for a constitutional error, a lack of jurisdiction in the sentencing court, or
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an error of law or fact that constitutes a ‘fundamental defect which inherently results in a complete
miscarriage of justice’” (quoting Hill v. United States, 368 U.S. 424, 428 (1962))).
It is within the district court’s discretion to determine whether to hold an evidentiary
hearing on a petitioner’s § 2255 claim. See Bennett v. United States, No. 03 Civ. 1852, 2004 WL
2711064, at *3 (S.D.N.Y. Nov. 23, 2004) (Scheindlin, J.). “While a court should not summarily
dismiss a case unless it is clearly bereft of merit, an evidentiary hearing is not needed in every
case.” Castillo v. United States, No. 07 Civ. 2976, 2010 WL 3912788, at *2 (S.D.N.Y. Sept. 8,
2010) (Wood, J.) (citing Chang v. United States, 250 F.3d 79, 85-86 (2d Cir. 2001)). In order to
obtain a hearing, “a petitioner ‘must demonstrate a colorable claim,’ and the court must evaluate
whether a hearing would ‘offer any reasonable chance of altering its view of the facts.’” Bennett,
2004 WL 2711064, at *3 (quoting Chang, 250 F.3d at 84, 86).
B. Waiver of Appellate Rights
The Second Circuit has routinely held that waivers of appellate rights in a plea agreement
are valid and enforceable. See, e.g., United States v. Riggi, 649 F.3d 143, 147 (2d Cir. 2011);
United States v. Lee, 523 F.3d 104, 106 (2d Cir. 2008). The rights that can be waived include
“collateral attack rights,” such as the right to challenge a conviction pursuant to § 2255. See
Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 195 (2d Cir. 2002); Garcia-Santos v.
United States, 273 F.3d 506, 509 (2d Cir.2001) (per curiam).
The Second Circuit has narrowly cabined the circumstances under which appellate waivers
are not enforceable. The exceptions include situations:
when the waiver was not made knowingly, voluntarily, and competently, when the
sentence was imposed based on constitutionally impermissible factors, such as
ethnic, racial or other prohibited biases, when the government breached the plea
agreement, or when the sentencing court failed to enunciate any rationale for the
defendant's sentence.
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United States v. Gomez-Perez, 215 F.3d 315, 319 (2d Cir. 2000) (internal citations omitted).
When asserting a claim for ineffective assistance of counsel during the plea agreement process,
“the petitioner must show that the plea agreement was not knowing and voluntary, because the
advice he received from counsel was not within acceptable standards.” Parisi v. United States,
529 F.3d 134, 138 (2d Cir. 2008) (internal quotation marks and citations omitted); see also Brizard
v. United States, No. 11 Civ. 6033, 2013 WL 1809636, at *3 (S.D.N.Y. Apr. 30, 2013) (Kaplan,
J.); Garafola v. United States, No. 09 Civ. 10280, 2012 WL 6622684, at *6-7 (S.D.N.Y. Dec. 20,
2012) (Koeltl, J.).
C. Ineffective Assistance of Counsel
Courts evaluate a claim of ineffective assistance of counsel under the framework
established in Strickland v. Washington, 466 U.S. 668 (1984); see also Hill v. Lockhart, 474 U.S.
52, 57-58 (1985) (applying Strickland to guilty pleas). Under Strickland, the petitioner must
show that (1) counsel’s performance was deficient, and (2) that the deficient performance
prejudiced petitioner’s case. See Strickland, 466 U.S. at 687; Bunkley v. Meachum, 68 F.3d
1518, 1521 (2d Cir. 1995). With respect to the deficiency prong, the petitioner bears the burden
of proving “that counsel’s representation was unreasonable under prevailing professional norms
and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365,
381 (1986) (citing Strickland, 466 U.S. at 688-89). In the context of a guilty plea, to meet the
prejudice prong, the petitioner “must show that there is a reasonable probability that, but for the
challenged ineffective assistance, he would not have pleaded guilty and would have insisted on
going to trial.” Brizard v. United States, No. 11 Civ. 6033, 2013 WL 1809636, at *4 (S.D.N.Y.
Apr. 30, 2013) (Kaplan, J.).
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III.
ANALYSIS
Petitioner’s arguments fall into two broad categories: (A) ineffective assistance of trial
counsel, and (B) ineffective assistance of appellate counsel. Petitioner argues that his trial
counsel rendered ineffective assistance by: (1) failing to advise Petitioner of the immigration
consequences of his guilty plea; (2) failing to challenge the search and seizure that led to the
recovery of incriminating evidence within Petitioner’s Bronx residence; (3) failing, after the plea
but prior to sentencing, to withdraw Petitioner’s guilty plea despite Petitioner’s requests to do so;
and (4) permitting Petitioner to speak with federal prosecutors without a grant of immunity.
(Petition ¶¶ 4, 6-7, 8, 10). Petitioner argues that his appellate counsel rendered ineffective
assistance by “failing to respond to the government’s motion to dismiss or to file a brief, thereby,
causing my appeal to be dismissed.” (Id. ¶ 12).
The Court finds that Petitioner’s arguments lack merit.
A) Ineffective Assistance of Trial Counsel
As an initial matter, to the extent that Petitioner raises claims relating to events other than
the plea agreement process—such as the search of his Bronx residence, his proffer sessions with
the U.S. Attorney’s office, or the attempted withdrawal of his plea—these claims are barred by the
appellate waiver. See Parisi, 529 F.3d at 138 (“Everything that occurs prior to a guilty plea or
entry into a plea agreement informs the defendant’s decision to accept or reject the agreement.
An ineffective assistance of counsel claim survives the guilty plea or the appeal waiver only where
the claim concerns ‘the advice [the defendant] received from counsel.’” (emphasis added)); see
also Gomez-Perez, 215 F.3d at 319 (limiting the circumstances when appellate waiver will not be
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enforced to, in relevant part, “when the waiver was not made knowingly, voluntarily, and
competently”). 1
Petitioner does raise some arguments that are not procedurally barred by the waiver
provision. Most importantly, Petitioner argues that his plea was not knowing and voluntary
because his counsel failed to advise Petitioner of the immigration consequences of his guilty plea.
This argument relates to the negotiation and entry of the plea, and therefore may proceed despite
the waiver. See Parisi, 529 F.3d at 138.
Nevertheless, the Court concludes that Petitioner has failed to carry his burden to establish
ineffective assistance. The evidence shows that Petitioner was fully aware of the immigration
consequences of his plea. The Plea Agreement repeatedly explained the likely immigration
consequences, including specifying that “denaturalization is a mandatory consequence of
conviction” and that deportation was likely mandatory (or at least a serious risk). (Plea
Agreement 1, 4). Moreover, when pleading guilty pursuant to the Agreement, Petitioner agreed
not to withdraw his plea “regardless of any immigration consequences that may result.” (Id. at 4).
At the plea hearing, Petitioner confirmed that he had reviewed the Plea Agreement with counsel,
understood its contents, and consented to its terms. He stated that he understood deportation
would likely be a mandatory result of his conviction, but nevertheless chose to waive his right to
challenge his conviction or sentence “either on direct appeal to the court of appeals or by any
1
These three claims also fail on their merits, because Petitioner has failed to establish any
deficient performance by counsel or prejudice to his case. First, the Government has submitted
evidence that Petitioner consented to the search of his apartment. (See Harrison Decl. ¶ 6 & Ex.
A). Second, the Government has submitted evidence that Petitioner’s proffers were conducted
under a standard proffer agreement, which does not include full immunity. Third, Petitioner was
afforded the opportunity to speak at his sentencing and chose not to raise the issue of withdrawing
his guilty plea. (See Sentencing Tr. 15). A “defendant has no absolute right to withdraw his plea
of guilty.” United States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994).
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application to this court based on any immigration consequences.” (Plea Transcript 21-22,
26-27).
Given the clarity of the record on this question, the Court does not accept Petitioner’s new
claims that he did not understand the terms of the Agreement and was unaware of the immigration
consequences of his plea. See Puglisi v. United States, 586 F.3d 209, 214 (2d Cir. 2009) (“[A]
district court need not assume the credibility of factual assertions, as it would in civil cases, where
the assertions are contradicted by the record in the underlying proceeding.”). To grant the
Petition on these grounds would permit Petitioner “to reap the benefits of a plea agreement while
escaping the consequences of a valid, bargained for agreement [and] would render the plea
bargaining process and the resulting agreement meaningless.” Bellettieri v. United States, No. 11
Civ. 7617, 2012 WL 6097771, at *3 (S.D.N.Y. Dec. 4, 2012) (Preska, C.J.) (quoting United States
v. Monzon, 359 F.3d 110, 117 (2d Cir. 2004) (internal quotation marks omitted)). 2
B) Ineffective Assistance of Appellate Counsel
Petitioner’s claim of ineffective assistance of appellate counsel is equally unavailing.
Petitioner claims that he instructed his attorney to file an appeal contending that his plea was not
knowing and voluntary and that Petitioner was not advised of the immigration consequences of his
plea. It is well established—even where a defendant waives his appellate rights—that counsel’s
failure to file an appeal or failure to file an adequate appellate brief may constitute ineffective
assistance. See Campusano v. United States, 442 F.3d 770, 775 (2d Cir. 2006). In this case,
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Nor is there any merit to Petitioner’s claim that his plea was involuntary because he
believed he would be given immunity and would not suffer any naturalization problems. (Reply
Br. 1-2). The Court has already established Petitioner’s full understanding of the potential
immigration consequences of his plea. Moreover, although Petitioner initially attended proffer
sessions with the Government, the proffer agreement, which Petitioner signed, did not provide for
full immunity. (Harrison Decl. ¶ 11). The Plea Agreement and Judge Freeman’s plea allocution
firmly establish that Petitioner could not have reasonably have misunderstood that he was
receiving immunity.
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however, Petitioner’s appellate counsel did file an appellate brief. Counsel’s Anders brief
explicitly noted that Magistrate Judge Freeman and this Court had properly inquired into the
voluntariness of Petitioner’s plea. Counsel’s representation was not ineffective, but merely
concluded that there was no non-frivolous basis for Petitioner’s appeal. See Jorge v. United
States, 818 F. Supp. 55, 57 (S.D.N.Y. 1993) (Sprizzo, J.) (“The filing of an Anders brief does not
in itself constitute ineffective assistance of counsel.” (citing McCoy v. Court of Appeals of Wisc.
Dist. 1, 486 U.S. 429, 442-44 (1988))). This Court’s review of the record supports counsel’s
conclusion.
IV.
CONCLUSION
For the reasons discussed above, Petitioner’s motion is DENIED. Because the Petition
makes no substantial showing of a denial of a constitutional right, a certificate of appealability will
not issue. 28 U.S.C. § 2253. This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and in forma pauperis status is denied.
See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED:
Dated: New York, New York
August 12 , 2013
/s/________________________________
KIMBA M. WOOD
United States District Judge
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